Recipients of DACA, a program created by President Barack Obama in 2012 to shield from deportation undocumented immigrants who were brought to this country as children, have lived in uncertainty for years as the battle over their status played out in the courts and lawmakers in Washington failed to deliver on their promise of a permanent solution.
Many of those immigrants and their family members rejoiced when President Donald Trump was turned out of office in November, believing that they had been spared from his efforts to terminate the program, which were blocked by the Supreme Court. President Joe Biden promised aggressive efforts to protect DACA recipients during his campaign and immediately initiated a series of executive actions to unravel Trump’s hostile immigration agenda once he took office.
But the so-called Dreamers have long known that a permanent solution to their status can only come from Congress. On Friday, they once again found their fate determined by the whims of the judiciary — in this case a judge who was nominated by former President George W. Bush.
Judge Andrew Hanen sided with Texas and a half-dozen other states Friday when he ruled that President Barack Obama’s administration had overstepped its bounds by creating the program. Hanen argued that Congress had not granted the Department of Homeland Security the authority to create DACA and that it prevented immigration officials from enforcing removal provisions of the Immigration and Nationality Act. Alabama, Arkansas, Louisiana, Nebraska, South Carolina and West Virginia joined Texas in bringing the lawsuit.
Rather than immediately strike down the program in its entirety, Hanen is putting some aspects of his decision on hold for the time being. He stayed his order for current DACA recipients. As long as the stay is in effect, recipients can renew their status — a process that occurs every two years. They will still be protected from deportation under their DACA status and allowed to work legally.
For now, it’s new applicants who are affected by Hanen’s ruling that the program is illegal. Thousands of those eligible applied in the wake of a December ruling that the federal government must accept new applications, but the majority are still waiting for approval amid a backlog that accumulated during the coronavirus pandemic. Friday’s decision blocks those applications from being granted, even if they were submitted prior to the ruling, Thomas Saenz, the president and general counsel of the Mexican American Legal Defense and Education Fund, told CNN.
Hanen seemed to sympathize with the precarious situation that immigrants shielded by DACA and their families are now facing when he explained that their status would remain in place for now: “Hundreds of thousands of individual DACA recipients, along with their employers, states, and loved ones, have come to rely on the DACA program,” Hanen wrote in a separate ruling Friday night. “Given those interests, it is not equitable for a government program that has engendered such a significant reliance to terminate suddenly.”
Congress’ failure to act
Scores of immigration activists seized on the ruling to express their frustration with Congress’ failure to permanently resolve the fate of DACA recipients over many years. They are trapped in a political moment when the Biden administration is under fire because of the crisis at the southern border and while immigration is one of the most polarizing issues heading into the midterm elections.
Fatima Flores, a DACA beneficiary who is the political director of the Coalition for Humane Immigrant Rights in California, called Hanen’s decision “an attack on hundreds of thousands of immigrants that consider the U.S. their home” and said she was “frustrated and angry that our lives are once again being thrown into the fire.”
“Congress needs to act immediately to protect our lives by including immigrants in reconciliation,” Flores said in a statement, referring to a gamble to tie immigration reform to a Democratic-only infrastructure bill they hope to pass through a complicated budget plan that would avoid a GOP filibuster. Key advocates argue it is the last hope — potentially in this Congress — for anything to pass.
“To my fellow immigrants: an entire movement stands alongside us. We are not alone. To our families and allies: we need you to be relentless and fight in solidarity with us. The time to stand on the sidelines is over,” Flores added.
Frank Sharry, executive director of America’s Voice, called it a “break-glass moment” when Democrats should act to create pathways to citizenship for Dreamers, Temporary Protected Status holders, farmworkers and essential workers.
“Earlier this week, Senate and House Democrats moved to include just such an immigration component in their Build Back Better plan,” he said. “Now it is up to them to get it done. Millions of lives hang in the balance.”
Congressional Democrats expressed a renewed sense of urgency Friday night. But it was far from certain whether their party, which controls the 50-50 Senate, has the political muscle needed to get new legislation passed.
House Speaker Nancy Pelosi said in a statement Friday night that Democrats “will continue to press for any and all paths to ensure that the Dream and Promise Act, now passed twice by the House, becomes the law of the land.” The legislation, which was passed in March as well as in previous years in the House, would provide a pathway to citizenship for Dreamers, as well as for Temporary Protected Status recipients and Deferred Enforced Departure beneficiaries.
“Democrats call on Republicans in Congress to join us in respecting the will of the American people and the law, to ensure that Dreamers have a permanent path to citizenship,” Pelosi said.
But the real test will be in the Senate, where bipartisan compromise has been elusive even on shared goals like repairing the country’s broken infrastructure, and it is hard to imagine senators finding common ground on an issue as polarizing as immigration.
Sen. Catherine Cortez Masto, the first Latina senator, said the ruling was “wrong” and would threaten the safety of tens of thousands of new DACA applicants who would no longer be able to pursue protected status. Like Pelosi, she called on Congress to pass the American Dream and Promise Act.
“The U.S. is the only home that Dreamers have ever known, and they should not be forced to live in fear of deportation,” the Nevada Democrat said. “DACA empowered undocumented youth to come out of the shadows and contribute to our communities in immeasurable ways — from serving in our military to being on the front lines of the coronavirus pandemic.”